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United States Court of Appeals

Tenth Circuit

June 5, 2007
Elisabeth A. Shumaker
Clerk of Court

Plaintiff - Appellant,
SCOTT JOHN OCKEY, also known as
Scott J. Ockey, also known as Scott
Ockey, also known as J. Scott Ockey,
doing business as CCA Corporation;
BARLOW , State of Utah Attorney
Generals office, individually and in
their official capacity; M ICH AEL
HINES; PA UL FIENDT, State of Utah
Securities Division, individually and
in their official capacities,

No. 06-4225
(D. Utah)
(D.C. No. 2:06-CV -17-TS)

Defendants - Appellees.


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

After being convicted on state charges of securities fraud in 2002,

Christena White filed in the United States District Court for the District of Utah a
pro se complaint against Scott Ockey (M s. W hites previous landlord), the Utah
Attorney Generals Office, Attorney General M ark Shurtleff, Assistant Attorney
General Charlene Barlow, the Utah Securities Division, and two Securities
Division officials, M ichael Hines and Paul Fiendt. W e will refer to the
defendants other than M r. Ockey as the State Defendants. The complaint alleges
against the State Defendants federal claims under 42 U.S.C. 3604 (the Fair
Housing Act) and 42 U.S.C. 1983, and state-law claims for abuse of process,
tortious interference with economic development, negligent interference with
economic development, and intentional infliction of emotional distress. In
addition, it alleges a defamation claim against A ssistant A ttorney General Barlow.
Against M r. Ockey, it alleges the above claims, as well as actions for trespass,
conversion, interference with quiet enjoyment of rental property, defamation,
fraud, deceptive business practices, malicious prosecution, sexual harassment,
constructive eviction, civil extortion, unjust enrichment, and a violation of the
Racketeer Influenced and Corrupt O rganizations Act (RICO), see 18 U.S.C.
Both the State Defendants and M r. Ockey filed motions to dismiss. The
district court granted the State D efendants motion, dismissing M s. W hites
1983 claim on Eleventh Amendment grounds and the state-law claims under the

Utah Governmental Immunity Act (UGIA), Utah Code Ann. 63-30-1 et seq.
(Supp. 2003). As further grounds for dismissing some of the claims, it ruled that
(1) M s. Barlow had absolute immunity for actions as a prosecutor, (2) M s. W hite
had failed to allege the falsity of the statements that M s. Barlow made about her
in an affidavit, and (3) the complaint makes no allegations of misconduct by
Attorney General Shurtleff. In a separate order the district court granted
M r. Ockeys motion to dismiss, holding that the claims against him should have
been brought as counterclaims in an earlier suit.
On appeal M s. W hites sole contentions are that (1) the district court erred
in dismissing her claims against the State Defendants on immunity grounds, (2)
the district court improperly allowed a magistrate judge to w rite the courts
orders; (3) the magistrate judge w as prejudiced against her; (4) the district court
separated the claims against M r. Ockey from the claims against the State
Defendants; (5) the district court accepted untimely filings from the defendants;
and (6) the district court denied her a fair trial under the Sixth Amendment. W e
Before turning to M s. W hites contentions w e must address the State
Defendants assertion that we lack jurisdiction because M s. W hites notice of
appeal does not designate the dismissal order but only the district courts order
denying her objections to the dismissal order. Under Fed. R. App. P. 3(c)(1)(B)
[t]he notice of appeal must . . . designate the judgment, order, or part thereof

being appealed. But we construe M s. W hites pleadings liberally because she

brought the action pro se, see Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir.
2006). M oreover, [t]he requirements of Rule 3 should be liberally construed.
M ere technicalities should not obstruct the consideration of a case on its merits.
Nolan v. U.S. Dept. of Justice, 973 F.2d 843, 846 (10th Cir. 1992) (citations,
brackets and internal quotation marks omitted). Thus, a notice of appeal
designating a ruling on a postjudgment motion is ordinarily effective to appeal the
judgment itself. See Foman v. Davis, 371 U.S. 178, 181 (1962) (notice of appeal
from denial of leave to amend w as effective, although inept, attempt to appeal
from the judgment sought to be vacated.); Jones v. Nelson, 484 F.2d 1165, 1168
(10th Cir. 1973) (notice of appeal from denial of motion for new trial was
effective as notice to appeal final judgment); Cheney v. M oler, 285 F.2d 116,
117118 (10th Cir. 1960) (same). W e therefore have jurisdiction to consider this
appeal and turn to the merits of the dismissal of the claims against the State
Dismissal of a pro se complaint under Rule 12(b)(6) for failure to state a
claim is proper only where it is obvious that the plaintiff cannot prevail on the
facts [s]he has alleged and it would be futile to give h[er] an opportunity to
amend. Johnson, 466 F.3d at 121415 (internal quotation marks omitted). W e
review de novo a district courts dismissal for failure to state a claim upon which


relief can be granted. See Ruiz v. M cDonnell, 299 F.3d 1173, 1181 (10th Cir.
The district court correctly dismissed the state-law claims under the UGIA .
At the time of the incidents alleged by M s. W hite it provided:
A claim against the state, or against its employee for an act or
omission occurring during the performance of the employees duties,
within the scope of employment, or under color of authority, is
barred unless notice of claim is filed with the attorney general within
one year after the claim arises, or before the expiration of any
extension of time granted under Section 63-30-11, regardless of
whether or not the function giving rise to the claim is characterized
as governmental.
Utah Code Ann. 63-30-12 (emphasis added) (The UGIA was superseded by the
Governmental Immunity Act of Utah, Utah Code Ann. 63-30d-101ff (2004), but
the provision quoted here was not materially changed by its successor,
63-30d-402). All the events alleged in the complaint occurred between
August 8, 2001, and January 14, 2004. M s. W hites Notice of Claim to the Utah
Attorney General, however, was filed on M ay 2, 2006 more than one year after
the last of the alleged events. Although M s. W hite asserts that the Utah
Constitutions Supremacy Clause, Utah Const. art. I, 3 (w hich states that Utah is
a part of the Federal Union and that the federal Constitution is supreme),
som ehow defeats the U G IA , she does not suggest how.
Turning to M s. W hites federal claims, the district court correctly ruled that
the Eleventh Amendment protected the State Defendants from M s. W hites 1983


claims against them in their official capacities. See Ruiz, 299 F.3d at 1180. The
district court also properly dismissed the individual-capacity claim against
M s. Barlow because of her prosecutorial immunity. See Imbler v. Pachtman, 424
U.S. 409, 431 (1976) ([I]n initiating a prosecution and in presenting the States
case, the prosecutor is immune from a civil suit for damages under 1983.).
And the court properly dismissed Attorney General Shurtleff from the 1983 suit
because the complaint failed to mention him in its allegations; he would not be
liable simply on the ground that he was a supervisor, see Jenkins v. Wood, 81
F.3d 988, 994 (10th Cir. 1996) ([T]here is no concept of strict supervisor
liability under section 1983. (internal quotation marks omitted)).
The district court failed, however, to address either M s. W hites Fair
Housing Act claim or her 1983 claims against H ines and Fiendt in their
individual capacities. Nevertheless, we may affirm the judgment below on any
grounds for which there is a record sufficient to permit conclusions of law, even
grounds not relied upon by the district court. See Mann v. Boatwright, 477 F.3d
1140, 1145 (10th Cir. 2007) (internal quotation marks omitted).
M s. W hites Fair Housing Act claim fails to state a cause of action against
the State Defendants because it does not allege that the State Defendants
discriminated against her on the basis of race, color, religion, sex, familial status,
or national origin. See 42 U.S.C. 3604(a). As to the claims that Hines and
Fiendt violated M s. W hites constitutional rights by entrapping her and later

committing perjury, the complaint is so bare of pertinent factual allegations that it

fails to nudge[] [her] claims across the line from conceivable to plausible, and
therefore must be dismissed. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
1960 (2007).
Finally, we reject M s. W hites remaining contentions. Her assertions that
the district court abused its discretion by bringing in a magistrate judge to
write the courts dismissals and that the magistrate judge was prejudiced in the
way he wrote motions to dismiss, A plt. Br. at 2, are supported by no specific
facts (or even specific allegations) nor any legal argument. She likewise fails to
explain how the district court erred by separating the Defendants [sic] Ockey
from the Defendants of the State, id., presumably a reference to the district
courts disposing of her claims in two separate orders. And her contention that
the district court abused its discretion by consistently accepting untimely filings
from both the State Defendants and Defendant Ockey, id. at 23, is not
accompanied by any recitation of which filings were untimely and why they
should not have been accepted. W e reject as well her claim that the dismissal of
her claims violated her Sixth Amendment right to a fair trial. Id. at 2. That
amendment applies only to criminal prosecutions. U.S. Const. amend V I. Even
if we construe her claim as a Seventh Amendment claim, that argument too fails.
See Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997) (proper dismissal


under Fed. R. Civ. P. 12(b)(6) establishes that there were no facts to be tried, so
Seventh Amendment right to jury trial is not implicated).
W e AFFIRM the judgment below. W e DENY M s. W hites motion to
supplement the record and overrule her objection to our order permitting the
filing of M r. O ckeys brief.

Harris L Hartz
Circuit Judge